Gonzales v Food First HDFC, Inc.

[*1] Gonzales v Food First HDFC, Inc. 2021 NY Slip Op 51247(U) Decided on December 17, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 17, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2020-540 K C

Rodney Gonzales, Respondent,

against

Food First HDFC, Inc., and Carmen Santana, Appellants.

Thomas M. Desimone, for appellants. Christopher R. Lynn, for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J., on liability; Sandra E. Roper, J., on damages), entered January 6, 2020. The judgment, after separate nonjury trials on the issues of liability and damages, awarded plaintiff the total sum of $42,672.64.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendants dismissing the complaint.

Plaintiff, a former janitor at Food First HDFC, Inc. (Food First), a non-profit entity that runs a shelter for victims of domestic violence, commenced this action alleging false arrest and false imprisonment against Food First and Carmen Santana, the head of security at the shelter. Plaintiff claimed that he was falsely arrested and charged with petit larceny after he was found to be in possession of allegedly stolen food. Following a nonjury trial on the issue of liability, the Civil Court (Robin K. Sheares, J.) found in favor of plaintiff. After a nonjury trial on the issue of damages (Sandra E. Roper, J.), a judgment was entered in favor of plaintiff in the total sum of $42,672.64.

The evidence revealed that, at the end of the workday on August 15, 2016, Santana had noticed that plaintiff's backpack was much bigger than it had been when he arrived at work that morning and so she asked plaintiff if she could look inside of it. Plaintiff refused and Santana called the police. Police Officer Kanesha Smith testified that, when the officers arrived, her partner went to the food pantry and the refrigerator at the shelter and Santana described the items that were missing from the shelves. Outside of Santana's presence, plaintiff gave the officers [*2]permission to open his backpack. Officer Smith saw that plaintiff's backpack contained the items that Santana had described as missing. When asked if he had a receipt for the items found in his backpack, plaintiff said that he did not. As a result, the police arrested defendant for petit larceny. The court noted that when the case "went through the criminal process, [defendant] had a disposition of disorderly conduct."

False arrest and false imprisonment are similar torts (see Cayruth v City of Mount Vernon, 188 AD3d 1139, 1140 [2020]; Jackson v Police Dept. of City of NY, 86 AD2d 860 [1992]). The elements of both are 1) the defendant intended to confine the plaintiff, 2) the plaintiff was aware of the confinement, 3) the plaintiff did not agree to be confined, and 4) the confinement was not otherwise privileged. "In order to hold a civilian defendant liable for false arrest, the plaintiff must establish that that defendant did not merely report a crime to the police or participate in the prosecution, but actively importuned the police to make an arrest without reasonable cause to believe in the plaintiff's culpability" (Rivera v County of Nassau, 83 AD3d 1032, 1033 [2011] [internal quotation marks and brackets omitted]). Civilian complainants, such as defendants herein, who merely seek police assistance or furnish the authorities with certain information, cannot be held liable for false arrest, where the authorities are free to exercise their own judgment, based on that information, in determining whether the accused should be arrested or criminal charges filed (see Levy v Grandone, 14 AD3d 660, 661 [2005]; Mesiti v Wegman, 307 AD2d 339 [2003]; O'Connell v Luebs, 264 AD2d 385 [1999]).

While a decision rendered by a court after a nonjury trial should not be disturbed on appeal unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence (see Ardmar Realty Co. v Building Inspector of Vil. of Tuckahoe, 5 AD3d 517, 518 [2004]), here, plaintiff clearly failed to satisfy his burden of proof. The evidence showed that Santana had reason to believe that defendant had stolen items from the pantry and refrigerator, and thus called the police. Thereafter, it was the police who took note of the items Santana said were missing and the police who found the allegedly missing items in plaintiff's backpack. A police officer asked plaintiff if he had a receipt for the items and plaintiff answered that he did not. It was then that the police arrested plaintiff. Thus, the evidence presented did not warrant a verdict in favor of plaintiff based on defendants' alleged commission of the torts of false arrest and false imprisonment.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment dismissing the complaint.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 17, 2021